Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Argument analysis: As Kennedy goes…

Posted Mon, November 10th, 2008 4:33 pm by Lyle Denniston

Analysis

Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch. Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.

The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?

Kennedy initially saw a potential problem if the Court were to answer yes to that question. He foresaw “a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency. He faulted the two lawyers arguing against confrontation for lacking a rationale that would keep the prosecution’s use of unexamined lab reports in check.

He also appeared to be on both sides of the issue of whether crime lab reports were the reliable results of objective science based on standardized protocols, or were prosecutorial documents drawn up explicitly to serve as criminal evidence against the accused. In the end, though, he seemed to be suggesting that, as a constitutional matter, there had to be some limits. For example, he objected with some fervor to the suggestion, made by the federal government’s lawyer, that if it was machine-generated, it should routinely come into evidence without more. “There are all sorts of machines,” he said. “Just because a machine was involved…you can’t make a sensible exception [to confrontation] on that basis.”

Jeffrey L. Fisher, the Stanford law professor arguing for the right to confront the lab chemists, had the significant benefit of Justice Antonin Scalia’s seemingly unqualified support. Scalia, who has made himself the chief protector of the Confrontation Clause, was ready to bolster Fisher’s argument at critical points, repeatedly making the point that crime lab reports are drawn up precisely to link physical evidence to the accused, and to support the prosecution’s case.

There were only a couple of points on which Fisher was significantly pressed. Justice Kennedy, aside from worrying over the potential impact on courts and trials, suggested that even if lab chemists had to show up for trial to defend their reports, they might not have much to say that could be of aid to the defense, so why call them? Justice Samuel A. Alito, Jr., echoed Kennedy, wondering whether Fisher was “arguing for an empty exercise.” And Justice Ruth Bader Ginsburg indicated that, if a chemists’ testimony was so potentially valuable to the defense, it could call the chemists to the stand on the defense side of the case.

Fisher sought to deflect Kennedy’s points by saying that having the right of confronting a lab technician was not producing heavy burdens where that practice actually exists. To Kennedy and Alito, he argued that confrontation would not be “fruitless” and should be available to defense counsel who deems it of potential value. To Ginsburg, the professor said that leaving it to the defense to summon the chemists would be to shift the burden of making a case from the prosecution to the defense. “It is the prosecution’s duty to put on witnesses” to make its case, he said.

Massachusetts Attorney General Martha Coakley had trouble from the outset drawing distinctions between eyewitness testimony for which confrontation is required and crime lab reports, as Justice David H. Souter, along with Scalia, pushed the point. She also failed to impress with a key point both in her brief and her oral argument: the Court has never had a confrontation case involving a lab report.

Before long, Justice Kennedy was stressing to Coakley the arguments he said she had to be ion making, and mildly chastized her when she did not do so. When he asked her to comment on why California was not having problems with confronton over lab reports, she at first responded that California was one of 35 states supporting Massachusetts in the case (only to have Chief Justice John G. Roberts, Jr., point out that she was in error on that). Then she said she had no information on California, but contended that confrontation of the kind would be “an undue burden” in Massachusetts.

As she was preparing to close, the Chief Justice asked for Coakley’s reaction if a lab test report was the central issue in a case, she said it would be “a bad strategic decision” to rely only on a report of that kind. But Kennedy sharply retorted: “That’s a non-reason.”

The federal government, in the case as an amicus supporting Massachusetts, did not fare particularly well in the presentation by Assistant to the Solicitor General Lisa H. Schertler. Her main theme, as in the government’s brief, was that lab reports are simply machine-generated data. They are, she suggested, like a courthouse clerk’s statement that a particular document offered at trial was a true copy.

Justice Scalia pounced: “But that is not material that was prepared for trial, to prosecute the individual.” And she fared no better, with Justice Kennedy, in arguing for a confrontation clause exception for machines and their output. Justice John Paul Stevens, too, voiced some skepticism on that point.

Kennedy asked Schertler to comment on the California experience. She said she had no information, but noted that, since a local appeals court in the District of Columbia had required confrontation with lab analysts in drug cases, “court appearances required of chemists have increased by 500 percent.” There was no time left for any Justice to examine what that meant.

The Court is expected to decide the case in the winter or early spring.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]